In India, Personal Shariat law, Dissolution of Muslim Marriage Act, 1939 and specific statutory acts governs the Muslim Divorce. There are various forms of divorce under Muslim Law depending on who is dissolving the marriage and how it is taking, Judicially or Non-Judicially.
Extra Judicial Divorce by Muslim Husband:
Talaq (Repudiation) is an Arabic word, meaning ‘undoing of’. When the husband expresses his clear intention to dissolve marriage is talaq. There are three methods of talaq in India, according to Shariat law, depending upon the mode of pronouncement, and they are: (i) Talaq-e-ahsan, (ii) Talaq-e-hasan and (iii) Talaq-e-biddat. Although the first two themselves are further classification of Talaq al-sunna (means in conformity with the direction of the Prophet).
Talaq-e-ahsan, is considered the most appropriate form of talaq among all in Muslim personal law. In this form of divorce, the husband makes a single pronouncement of talaq in one sentence during the wife’s tuhr, which means the period of purity between the two consecutive mensuration cycles. This pronouncement is followed by abstinence from exercising conjugal rights for a period of three tuhrs, known as idda, after which the divorce becomes irreversible after idda. Although, the husband can revoke talaq during idda by express statement or restituting conjugal rights .
Whereas, in Talaq-e-Hasan, husband makes pronouncement of talaq three times during three successive, not consecutive, tuhrs. These pronouncements should be made during such turhs during which no intercourse has taken place and upon last pronouncement the talaq becomes irrevocable.
Third one is Talaq-e-biddat or Triple Talaq, in which three pronouncements of talaq are made in a single tuhr either in one sentence or in three sentences. This form of divorce is illegal and void under Muslim Women Act (2019).
Extra Judicial Divorce by Muslim Wife:
Muslim wife also possesses the right to dissolve the marriage. There are two ways through which a wife can divorce or dissolve the marriage: Talaq-e-tafwid (delegated divorce) and Khula (redemption). In Talaq-e-tafwid, the wife reserves the right in marriage deed to divorce under specific circumstances in future. These circumstances should be valid and not opposed to public policy. While in Khula, the wife tells her husband that she wants to dissolve the marriage even reserving no rights for divorce under marriage deed. It is in contrast to the husband’s right of talaq.
Extra Judicial Dissolution of Marriage by Mutual Consent:
In Mubaraa, both husband and wife are allowed to dissolve the marriage by mutual consent. In this method, the couple dissolves their marriage extra-judicially upon the mutually agreed terms.
Judicial Divorce under Dissolution of Muslim Marriages Act, 1939:
Ultimately, there are two types of Judicial Divorce and they are: (i) Faskh and (ii) Lian; both are provided under Dissolution of Marriage. Grounds for Faskh are mentioned under Section 2 of the Act such as, no information of her husband is available from past four months; the husband is impotent and likewise. While Lian allowed on the specific ground of false accusation made by her husband on her for adultery.
Conclusion
Muslim personal law has created a unique space where personal aspects of muslim individuals like divorce are governed by religious practice and customs alongwith state regulations and laws. The Muslim personal law has evolved with passage of time, Fask and Lian are examples of it. However, women have comparatively weaker extra judicial rights to divorce under Muslim personal law and therefore, it is essential to enforce personal law with checks and balances.
